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Summers v. City of McCall

United States District Court, D. Idaho

January 29, 2015

GERALD A. SUMMERS, Plaintiff,
v.
CITY OF MCCALL; a political subdivision of the State of Idaho, and EUGENE DRABINSKI, City Manager for the City of McCall, DONALD BAILY, Mayor of the City of McCall and a City Council member, DR. MARCIA WITTE, M.D., a member of the McCall City Council, NICOLAS SWANSON, a member of the McCall City Council, JACKIE AYMON, a member of the McCall City Council, LAURA SCOTT, a member of the McCall City Council, in their individual and official capacities, Defendants

For Gerald A Summers, Plaintiff: Matthew C Williams, Williams Law, P.L.L.C., Cascade, ID.

For City of McCall, a political subdivision of the State of Idaho, Eugene P. Drabinski, City Manager for the City of McCall, Mayor Donald Bailey, Mayor of the City of McCall and a City Council member, Marcia Witte, Dr, a member of the McCall City Council, Nicolas Swanson, a member of the McCall City Council, Jackie Aymon, a member of the McCall City Council, Laura Scott, a member of the McCall City Council, Defendants: Bentley G Stromberg, LEAD ATTORNEY, CLEMENTS BROWN & MCNICHOLS, Lewiston, ID.

MEMORANDUM DECISION AND ORDER

Honorable Edward J. Lodge, United States District Judge.

INTRODUCTION

Pending before the Court in the above-entitled matter is the Defendants Motion for Summary Judgment and related Motion to Strike. The parties have filed their responsive briefing and the matters are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Gerald A. Summers was appointed as the Chief of Police for the City of McCall, Idaho in November of 2005 and held that position until his termination on April 11, 2013. The facts giving rise to the claims in this case primarily revolve around the actions of Defendant Eugene Drabinski who was the interim and later became the permanent City Manager of the Defendant City of McCall (the " City" ).[1] Mr. Summers claims that Mr. Drabinski retaliated against him for various reasons including: supporting another candidate for the City Manager position, reporting Mr. Drabinski's aggressive behavior towards Mr. Summers and his creating of a hostile work environment, conducting a criminal investigation of the Valley County Sheriff's Office, filing a Notice of Tort Claim against Valley County, and reporting Mr. Drabinski's driver's license violations. (Dkt. 1.)

Prior to his termination, Mr. Summers had worked for the City's police department for several years ultimately ascending to the position of Police Chief. In August of 2012, Mr. Drabinski was appointed interim City Manager by the City Council while the City searched for a permanent City Manager. Mr. Summers applied for the permanent position but was eliminated from contention mid-way through the process. Mr. Summers then shifted his support to another candidate with whom he had previously worked, Carol Brockmann. Later in the search process, Mr. Drabinski submitted his own application for the permanent position. The City Council eventually appointed Mr. Drabinski as the permanent City Manager in November of 2012.

While Mr. Drabinski was still acting as interim City Manager, he and Mr. Summers had many interactions given their respective positions in the City. These interactions reveal that the two disagreed about several matters and/or had difficulty working together and communicating. One particular circumstance occurred in September of 2012 during a meeting at the police department where Mr. Drabinski was presenting the results of a public survey he had put out concerning the City's police force.[2] Mr. Summers disagreed with the accuracy and/or reliability of the survey. At the September 2012 meeting, Mr. Summers alleges that Mr. Drabinski became aggressive and threatening towards him prompting some who were present to report the actions to the City's Human Resources Manager. Other instances evidencing a conflict between the two arise from reports of Mr. Drabinski's driving violations, alleged retaliation and general threats of termination made by Mr. Drabinski towards Mr. Summers, Mr. Drabinski's accusations challenging Mr. Summers' loyalty and statements that Mr. Summers needed to " get on the bus," and the circumstances surrounding Mr. Summers' relationship with the Valley County Sheriff's Office.

In January of 2013, after being appointed permanent City Manager, Mr. Drabinski met with Mr. Summers and asked for his resignation and/or threatened to fire him. (Dkt. 1 at ¶ ¶ 66-68, 72.) Mr. Summers refused to resign and notified the City Council of Mr. Drabinski's retaliation. On February 1, 2013, Mr. Summers was place on paid administrative leave. (Dkt. 1 at ¶ 75.) Mr. Summers alleges the City did not conduct any investigation into his reports of retaliation. On February 15, 2013, a Notice of Proposed Personnel Action was issued wherein Mr. Drabinski proposed that Mr. Summers be terminated. On February 21, 2013, the City Council held a closed session to take up the proposal to terminate Mr. Summers. At this session Mr. Drabinski gave his reasons for recommending that Mr. Summers be terminated and asked the City Council to approve his request. Mr. Summers was then given the opportunity to refute the allegations and present his position to the City Council. Thereafter, the City Council considered the proposal to terminate Mr. Summers in three separate sessions. Ultimately, on April 12, 2013, the City Council approved the proposed action and a Notice of Termination was sent to Mr. Summers. Thereafter, on April 30, 2013, Mr. Summers initiated this case by filing the instant Complaint raising the following claims:

1. Wrongful Termination in violation of Idaho Code § 6-2101 re: investigation of the Valley County Sheriff's Office
2. Wrongful Termination in violation of Idaho Code § 6-2101 re: filing a Notice of Tort Claim against Valley County
3. Wrongful Termination in violation of Idaho Code § 6-2101 re: reporting workplace hostility by Mr. Drabinski
4. Wrongful Termination in violation of Idaho Code § 6-2101 re: reporting Mr. Drabinski's driving violation
5. Wrongful Termination in violation of Idaho Code § 6-2101 re: supporting a candidate other than Mr. Drabinski for the City Manager position
6. Violation of 42 U.S.C. § 1983 - deprivation of property interest in continued employment without due process
7. Violation of Idaho Constitution - deprivation of property interest in continued employment without due process
8. Violation of 42 U.S.C. § 1983 - deprivation of liberty interest without due process
9. Violation of Idaho Constitution - deprivation of liberty interest without due process
10. Violation of 42 U.S.C. § 1983 - deprivation of property interest without due process based on exercise of political speech
11. Negligent infliction of emotional distress against the City
12. Negligent infliction of emotional distress against Mr. Drabinski
13. Negligent Supervision and Training against the City
14 Breach of the covenant of good faith and fair dealing

(Dkt. 1.) The Defendants have filed this Motion for Summary Judgment as to all of the claims raised in the Complaint. (Dkt. 11.) The Court finds as follows.

STANDARD OF REVIEW

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment " shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party's case and upon which the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the non-moving party fails to make such a showing on any essential element, " there can be no 'genuine issue of material fact,' since a completely failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.[3]

Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both " material" and " genuine." An issue is " material" if it affects the outcome of the litigation. An issue, before it may be considered " genuine," must be established by " sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distribs. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989).

According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.

Id. at 374 (citation omitted).

Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).

ANALYSIS

1. Motion to Strike

Defendants have filed a Motion to Strike portions of the Affidavit of Gerald A. Summers arguing the objectionable portions are inadmissible hearsay, improper opinion testimony, speculation, and irrelevant. (Dkt. 18.) Plaintiff maintains the statements in the Affidavit are all based on Mr. Summers' personal knowledge, relevant, and have the proper foundation. (Dkt. 19.) The Motion to Strike is granted in part and denied in part. The Court has reviewed the particular portions of the Affidavit objected to by the Defendants and will consider the same only to the extent they contain relevant facts of which Mr. Summers has personal knowledge that would be admissible. See Fed.R.Civ.P. 56(c)(4).

2. Motion for Summary Judgment

The Motion for summary judgment seeks dismissal as to all of the claims raised in the Complaint. (Dkt. 11.) In his response brief, Mr. Summers has agreed that claims 5, 7, 9, 11, 13, and 14 should be dismissed. (Dkt. 13.)[4] Mr. Summers further states that the " whistleblower claims," 1-5, are plead only against the City and not the individual Defendants in their personal capacity. (Dkt. 13 at 3 n. 1.) As to the twelfth claim, Mr. Summers does not dispute that summary judgment should be granted on this claim as it is alleged against Mr. Drabinski in his official capacity as City Manager but maintains that the claim should go forward against Mr. Drabinski in his individual capacity. (Dkt. 13 at 19.) The Court agrees and will dismiss claims 5, 7, 9, 11, 13, and 14 in their entirety. Claims 1, 2, 3, 4, and 5 are dismissed against the individual Defendants in their personal capacity. Claim 12 will be dismissed as alleged against Mr. Drabinski in his official capacity. The Court will discuss the remaining claims below.

A. Idaho Protection of Public Employees Act Claims

The Idaho Protection of Public Employees Act (IPPEA), Idaho Code § 6-2101 et seq., " seeks to protect the integrity of the government 'by providing a legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation.'" Patterson v. State Dep't of Health & Welfare, 151 Idaho 310, 256 P.3d 718, 724 (Idaho 2011) (quoting Van v. Portneuf Med. Ctr., 147 Idaho 552, 212 P.3d 982, 987 (Idaho 2009)). This statute is commonly referred to as the " whistle-blower statute." Mallonee v. State, 139 Idaho 615, 84 P.3d 551, 555 (Idaho 2004). " To establish an IPPEA claim, a plaintiff must establish, by a preponderance of the evidence, 'that the employee has suffered an adverse action because the employee, or a person acting on his behalf engaged or intended to engage in an activity protected under section 6-2104, Idaho Code.'" Patterson, 256 P.3d at 724-25 (quoting Idaho Code § 6-2105(4)).

" Under Idaho's Whistleblower Act, a prima facie case for retaliatory discharge requires [the employee] to show: (1) he was an employee who engaged or intended to engage in protected activity; (2) his employer took adverse action against him; and (3) the existence of a causal connection between the protected activity and the employer's adverse action." Van v. Portneuf Med. Cntr., 156 Idaho 696, 330 P.3d 1054, 1059 (Idaho 2014) (quoting Van, 212 P.3d at 988). At trial on a claim for retaliatory discharge, the traditional McDonnell-Douglas balance shifting analysis applies. Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 224 P.3d 458, 463 (Idaho 2008).

At the summary judgment stage however, there is a conflict in Idaho concerning whether or not the McDonnell-Douglas analysis applies to these types of claims.[5] See Brown v. City of Caldwell, No. 1:10-cv-536-BLW, 2012 WL 892232, at *6-7 (D. Idaho 2012) (applying the McDonnell-Douglas balancing test at the summary judgment stage to a IPPEA claim despite the Idaho Supreme Court's holding in Curlee) ; Berger v. Madison Cnty., No. 4-12-cv-00535-CWD, 2014 WL 222067, at *7-8 (D. Idaho 2014) (declining to apply the McDonnell-Douglas analysis to a IPPEA claim at summary judgment based on Curlee ); Berrett v. Clark Cnty. School Dist. No. 161, No. 4:12-cv-00626-EJL-CWD, 2014 WL 4926161 (D. Idaho 2014) (applying the McDonnell-Douglas analysis to a motion for summary judgment on an Idaho Whistleblower Act claim). This Court finds the McDonnell-Douglas burden shifting analysis is appropriate to apply to this Motion for Summary Judgment. See Brown, 2012 WL 892232, at *6-7 and Berrett, 2014 WL 4926161, at *8.

" When the McDonnell Douglas analysis is applied to cases involving retaliatory discharge under a whistleblower statute, the test is as follows: (1) the plaintiff must establish a prima facie case of retaliatory conduct for an action protected by the relevant whistleblower statute; (2) once the plaintiff demonstrates a prima facie case, the defendant is obligated to produce evidence which, if taken as true, would permit the conclusion that there was a non-retaliatory reason for the adverse action; and (3) if the defendant articulates a legitimate non-retaliatory reason for discharge, then the burden shifts to the plaintiff to prove by a preponderance of the evidence that the reason the defendant offers is a pretext for retaliatory conduct." Curlee, 224 P.3d at 463 (citation omitted); see also Van, 330 P.3d at 1059 (applying the McDonnell-Douglas analysis to the jury verdict in a trial on a retaliation claim). Applying this standard to the IPPEA claims in this case, the Court finds as follows.

1. Investigation of Valley County Sheriff's Office

The first claim for relief alleges that Mr. Summers was a public employee who engaged in a protected activity, to-wit a lawful investigation of the Valley County Sheriff and members of her staff. (Dkt. 1 at ¶ ¶ 51-56, 94-100.)[6] Mr. Summers asserts his termination by the Defendants was causally connected to that protected activity and, therefore, in violation of the IPPEA. (Dkt. 1 at ¶ ¶ 94-100.) Defendants agree that Mr. Summers' investigation of the Valley County Sheriff's Office in January of 2012 was a protected activity ...


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